Diffenderfer v. Gomez-Colon

Filing 920091119

Opinion

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var gAgent = navigator.userAgent.toLowerCase() var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) ) var gIE = ( gAgent.indexOf( "msie" ) != -1 ) var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) ) var floatwnd = 0 var WPFootnote1 = '                   Of the Seventh Circuit, sitting by designation.\ ' var WPFootnote2 = '                   Walter Velez-Rodriguez, who was Secretary of the\ Commission at the time, was originally a co-appellant. His appeal\ was voluntarily dismissed pursuant to Fed. R. App. P. 42(b) on\ February 5, 2009. \ ' var WPFootnote3 = '                   The district court made an initial award of attorney\'s\ fees on April 1, 2009 and issued an amended order and judgment on\ April 24, 2009. The first order awarded $65,992.00 in attorney\'s\ fees against three of the four Commissioners, in addition to Gomez-Colon. After this initial judgment issued on April 1, 2009,\ Diffenderfer and McCarroll asked for reconsideration of the\ calculations and for inclusion of litigation costs. In a revised\ order on April 24, 2009, the district court accepted plaintiffs\'\ arguments in part and revised the attorney\'s fee figure upwards to\ $67,550.34. It also imposed attorney\'s fees only upon Gomez-Colon\ in his official capacity, since, as President of the Commission, he\ was the only one able to represent the Commission as a whole. \ ' var WPFootnote4 = '                   This is not a case where the initial mootness arguably\ occurred during proceedings before the district court and the later\ mootness occurred while the case was on appeal, thereby raising\ questions regarding the legal effect of ancillary judgments. Cf.\ In re Scruggs, 392 F.3d 124, 128-30 (5th Cir. 2004) (evaluating\ whether case was already moot prior to decisive intervening event\ of mootness when date of mootness determined whether Bankruptcy\ Court order remained in place or whether district court had\ jurisdiction to reverse that order).\ ' var WPFootnote5 = '                   Gomez-Colon also asserts that under Local Rule 54(a),\ plaintiffs prematurely filed their claim for attorney\'s fees before\ the district court. He suggests that plaintiffs should have waited\ to apply for fees until after the disposition of this appeal. But\ Gomez-Colon never made this argument before the district court when\ it assessed attorney\'s fees, even though Gomez-Colon had, at that\ time, already filed a notice of appeal of the underlying judgment. \ We therefore consider this argument waived.\ ' var WPFootnote6 = '                   We reject Diffenderfer and McCarroll\'s alternate theory,\ that they were prevailing parties under § 1988 because their\ lawsuit formed the impetus for Law No. 90 and therefore provided\ them with the real-world change their lawsuit was designed to\ achieve. The Supreme Court squarely rejected this "catalyst\ theory" of "prevailing party" status in Buckhannon. 532 U.S. at\ 605. Sole v. Wyner, 551 U.S. 74 (2007), did not alter that\ conclusion; it was concerned with the question of whether a\ preliminary injunction that was dissolved by a subsequent final\ decision in the same case was enough to create "prevailing party"\ status, and its "consistency" with the majority and dissenting\ opinions in Buckhannon did not challenge the validity of the\ majority\'s holding. Id. at 82 n.3.\ ' var WPFootnote7 = '                   Plaintiffs do not appeal the district court\'s across-the-board reduction for excessive and duplicative billing practices. \ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( 'Close'); floatwnd.document.write( "

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